Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
5-26-1995
Waldron v SL Industries, Inc.
Precedential or Non-Precedential:
Docket 94-5282
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 94-5282
___________
REED WALDRON
Appellant,
vs.
SL INDUSTRIES, INC.; SL-WABER, INC.
Appellees.
___________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Civil No. 92-cv-05445)
___________
ARGUED JANUARY 25, 1995
BEFORE: BECKER, LEWIS and GARTH, Circuit Judges.
(Filed May 26, 1995)
___________
Alice W. Ballard (ARGUED)
Samuel & Ballard
225 South 15th Street
Suite 1700
Philadelphia, PA 19102
Attorney for Appellant
David B. Mulvihill (ARGUED)
Titus & McConomy
Four Gateway Center
20th Floor
Pittsburgh, PA 15222
Attorney for Appellees
Barbara L. Sloan
Equal Employment Opportunity Commission
1801 L Street, N.W.
Washington, DC 20507
Attorney for Amicus-appellant, Equal
Employment Opportunity Commission
___________
OPINION OF THE COURT
___________
LEWIS, Circuit Judge.
The district court in this case predicted that, after
St. Mary's Honor Ctr. v. Hicks, 113 S. Ct. 2742 (1993), we would
require a plaintiff at summary judgment in a suit brought under
the Age Discrimination in Employment Act, 29 U.S.C. § 621 et
seq., and the New Jersey Law Against Discrimination, N.J.S.A.
§ 10:5-1 et seq., to prove both that his employer's reasons for
terminating him were false and that the real reason for
termination was discrimination. Recent decisions of this court,
including Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1994), Torre
v. Casio, Inc., 42 F.3d 825 (3d Cir. 1994), and Sempier v.
Johnson & Higgins, No. 94-5208 (3d Cir. Jan. 6, 1995), have
established that this prediction was inaccurate. Because the
district court's legal standard was thus in error, the principal
question for our review is whether under the proper standard, the
defendant was entitled to summary judgment. In other words,
provided that the plaintiff produced sufficient evidence to
establish a prima facie case, did he also provide sufficient
evidence upon which a reasonable jury could determine that either
his employer's reasons for terminating him were false or that
discrimination was more than likely the motivating factor? We
find that the plaintiff, Reed Waldron, presented sufficient
evidence to survive summary judgment, and therefore we will
reverse.
I.
SL Waber, Inc., a subsidiary of SL Industries, Inc.,
manufactures machinery designed to protect sensitive electrical
and electronic equipment. Reed Waldron was employed at Waber
from 1972 through 1986, but was laid off in 1986 because of a
reorganization. In 1989, after two years of work at a competitor
of Waber, he was rehired by Waber as a consultant. He was 61
years old when he was rehired.
In July 1990, Waber found that the employee functioning
as industrial market manager, Scott Hammill, was having
difficulties. Thus, Waber decided to split the industrial market
manager position into two positions separately devoted to
marketing electronic equipment and electrical equipment. Hammill
was given the electronic marketing manager's position, and
Waldron was named electrical marketing manager. In spring of
1991, Hammill voluntarily left Waber, the positions were
reconsolidated, and Waldron was given the reconsolidated position
of industrial market manager.
There is conflicting evidence about whether Waldron
performed his tasks adequately in the industrial market manager
position. Predictably, Waldron contended that he did a good job,
but the company said that he did not vigorously pursue key
accounts and performed poorly during a series of incidents
related to preparation of and presentation to Waber's parent, SL
Industries, of the fiscal year 1992 business plan.
In August 1991, just after the company adopted the 1992
business plan, Waldron was discharged -- at the age of 63. Kevin
Woznicki, vice-president of sales and marketing, apparently told
Waldron that his job had been eliminated, that his former duties
were being distributed between two new positions -- electronics
market manager and electrical market manager -- and that Waldron
was "not the best candidate" for either position, principally
because he did not go after key accounts. Although Woznicki
apparently told Waldron he was terminated (Joint Appendix
("App.") 116), Woznicki first sought and received approval of the
decision from Ronald Mazik, the company's president.
Shortly thereafter, Ed Brown, a telephone sales
representative aged 32, was promoted to the electronics market
manager's position -- that is, one half of Waldron's old job.
The electrical market manager position (the other half) was never
advertised or filled, and within a short time (five to six
months) the company recombined the two positions with Brown in
the consolidated post -- again called industrial market manager,
the title of Waldron's old job.
Waldron sued Waber, claiming that he had been
discharged because of his age in violation of the Age
Discrimination in Employment Act, 29 U.S.C. § 621 et seq.,1 and
the New Jersey Law Against Discrimination, N.J.S.A. § 10:5-1 et
seq. ("LAD").2 The company moved for summary judgment, arguing
that, under the "pretext-plus" standard that it predicted we
would adopt for dealing with summary judgment after Hicks,
1
. Section 623(a)(1) of Title 29 of the United States Code
provides that "[i]t shall be unlawful for an employer . . . to
fail or refuse to hire or to discharge any individual or
otherwise discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual's age." 29 U.S.C. § 623(a)(1).
2
. The LAD provides:
It shall be an unlawful employment
practice, or, as the case may be, an unlawful
discrimination:
a. For an employer, because of the
race, creed, color, national origin,
ancestry, age, marital status, affectional or
sexual orientation, sex or atypical
hereditary cellular or blood trait of any
individual, or because of the liability for
service in the Armed Forces of the United
States or the nationality of any individual,
to refuse to hire or employ or to bar or to
discharge or require to retire, unless
justified by lawful considerations other than
age, from employment such individual or to
discriminate against such individual in
compensation or in terms, conditions or
privileges of employment . . . .
N.J. Stat. Ann. 10:5-12(a).
Waldron did not have sufficient evidence upon which a jury could
find both that Waber's reasons for firing him were pretextual and
that the real reason for the termination was age-related animus.
The district court agreed, found that the ADEA and LAD claims
were governed by the same standard, and rendered summary judgment
in favor of the company. The district court had jurisdiction
under 29 U.S.C. § 623(a) and 28 U.S.C. § 1331. We have
jurisdiction under 28 U.S.C. § 1291.
II.
A.
In St. Mary's Honor Ctr. v. Hicks, 113 S. Ct. 2742
(1993), the Supreme Court addressed a pervasive split that had
developed among the courts of appeals over the proper application
of the scheme established in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), for allocating the burdens of production and
presentation of proof in cases involving allegations of
discrimination in violation of Title VII of the Civil Rights Act
of 1964. Under the familiar shifting burdens analysis of
McDonnell Douglas, a plaintiff must initially establish a minimal
prima facie case -- essentially, that he or she is a member of a
protected class and was qualified for an employment position, but
that he or she was either not hired for that position or was
fired from it "under circumstances that give rise to an inference
of unlawful discrimination." Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981).3 Once the plaintiff
3
. As the Supreme Court made clear, the precise elements of a
plaintiff's prima facie case may vary with the particular
establishes his or her prima facie case, the burden shifts to the
defendant to articulate one or more legitimate, non-
discriminatory reasons for its employment decision. If one or
more such reasons are proffered, the presumption of
discrimination created by establishment of the prima facie case
is dispelled, and the plaintiff must prove that the employer's
proffered reason or reasons were pretextual -- that is, that they
are false and that the real reason for the employment decision
was discriminatory.
It was the meaning of this last phase of the McDonnell
Douglas scheme that had caused dissention among the courts of
appeals: if a plaintiff proved that an employer's proffered
reasons were unworthy of credence, must the jury return a verdict
in his or her favor, or was it still required to find that
discriminatory animus more than likely caused the employment
decision? In Hicks, resolving a circuit conflict, the Court
decided that although "[t]he factfinder's disbelief of the
reasons put forward by the defendant . . . may, together with the
elements of the prima facie case, suffice to show intentional
discrimination," so that if an employer's proffered reasons for
the employment decision are rejected, "no additional proof of
(..continued)
circumstances. McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802 n.14 (1973); Teamsters v. United States, 431 U.S. 324, 335-36
& n.15 (1977); Texas Dept. of Community Affairs v. Burdine, 450
U.S. 248, 253 n.5 (1981). See generally Torre v. Casio, Inc., 42
F.3d 825, 830-31 (3d Cir. 1994) ("the nature of the required
showing to establish a prima facie case of disparate treatment by
indirect evidence depends on the circumstances of the case"
(internal quotation omitted)).
discrimination is required," nevertheless the ultimate burden of
persuasion remains on the plaintiff throughout the case. Id. at
2749. Thus, "a plaintiff's proof of his or her prima facie case
and proof that the employer's proffered reasons are false does
not compel a judgment in the plaintiff's favor." Id.
Although Hicks resolved the issue of whether a
plaintiff is entitled to judgment as a matter of law at trial if
he or she establishes a prima facie case and discredits an
employer's justifications for the employment decision, it did not
address the standard by which summary judgment should be assessed
in a pretext case under the ADEA.4 The district court in this
case noted that we had not yet ruled on this issue, but predicted
that we would side with those courts of appeals that had required
plaintiffs at summary judgment to produce evidence of "pretext-
plus." Waldron v. SL Industries, Inc., 849 F. Supp. 996, 1004
n.11 (D. N.J. 1994). That is, the district court predicted that
at summary judgment we would require plaintiffs to demonstrate"
both that the employer's reasons are false and that the real
reasons were discriminatory . . . ." Id.
Contrary to the district court's prediction, however,
in Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1994), we joined
those of our sister circuits who have read Hicks to require at
4
. Although Hicks was a Title VII case, its analysis applies
to ADEA cases, as well. See McKenna v. Pacific Rail Services,
Inc., 32 F.3d 820, 825-26 & n.3 (3d Cir. 1994) (shifting burden
analysis applicable to Title VII cases also applicable to cases
under ADEA).
summary judgment "pretext-only." Judge Becker noted in Fuentes
that,
[b]ecause the factfinder may infer from the
combination of the plaintiff's prima facie
case and its own rejection of the employer's
proffered non-discriminatory reasons that the
employer unlawfully discriminated against the
plaintiff and was merely trying to conceal
its illegal act with the articulated reasons,
see Hicks, __ U.S. at __, 113 S. Ct. at 2749,
a plaintiff who has made out a prima facie
case may defeat a motion for summary judgment
by either (i) discrediting the proffered
reasons, either circumstantially or directly,
or (ii) adducing evidence, whether
circumstantial or direct, that discrimination
was more likely than not a motivating or
determinative cause of the adverse employment
action.
Fuentes, 32 F.3d at 764.
Thus, we clarified that "if the plaintiff has pointed
to evidence sufficient[] to discredit the defendant's proffered
reasons, to survive summary judgment the plaintiff need not also
come forward with additional evidence of discrimination beyond
his or her prima facie case." Fuentes, 32 F.3d at 764. This
standard is obviously different from that imposed by the district
court, and it will be our responsibility on appeal to assess
whether, under this standard, plaintiff's claims should have
survived summary judgment.5
5
. Although Waber conceded at oral argument that the district
court applied the incorrect legal standard under Fuentes and its
progeny, the company sought in its brief to undercut the strength
of Fuentes' precedential value by contending that it is
inconsistent with two of our other recent decisions: Seman v.
Coplay Cement Co., 26 F.3d 428 (3d Cir. 1994), decided two months
before Fuentes, and Armbruster v. Unisys Corp., 32 F.3d 759 (3d
Cir. 1994). Those decisions, however, are entirely consistent
with Fuentes. See Seman, 26 F.3d at 433 (noting that, under
B.
At summary judgment, the district court found that
Waldron had established a prima facie case, and Waber does not
contest that issue on appeal. However, the district court
credited Waber with having established the following non-
discriminatory business justification for its decision to
terminate Waldron. Because of economic hardship, Waber was
forced to restructure its industrial marketing business, and one
of the changes involved reverting to the organizational structure
it had formerly used. That is, Waber decided to re-bifurcate the
two segments of the industrial market -- electrical and
electronics -- with each segment having its own manager.
However, Waber decided that Waldron was not the best candidate
for either of the two positions. Having had the chance to assess
Waldron's performance as industrial market manager for more than
a year, the company determined that he was not the best candidate
for either new position primarily because Waldron had not
sufficiently visited "key accounts." The company's conclusion
was confirmed when it was preparing its fiscal 1992 business
plan. Waldron's portion of the business plan was considered
(..continued)
Hicks, "rejection of the employer's proffered nondiscriminatory
reason will permit the trier of fact to infer the ultimate fact
of intentional discrimination, so long as there is a finding of
discrimination. In other words, `[t]he factfinder's disbelief of
the reasons put forward by the [employer] . . . may, together
with the elements of the [employee's] prima facie case, suffice
to show intentional discrimination.'"); Armbruster, 32 F.3d at
783 (recognizing that disbelief in the employer's proffered
explanations, combined with the plaintiff's prima facie case, may
be sufficient to allow a jury to infer the "ultimate fact of
intentional discrimination").
inadequate and needed a "massive overhaul," and when called upon
at a meeting to rehearse his part of the presentation, he was
unprepared. Furthermore, at the conclusion of the presentation
to the management of Waber's parent, SL Industries, Waldron made
comments about increasing sales by increasing sales reps'
commissions that showed that he either did not know -- or did not
agree with -- the direction Waber was pursuing, since Waber's
plan was to increase sales by pursuing "key accounts" -- very
large current or potential customers. Waldron, 849 F. Supp. at
1002.
In reply, Waldron contends that he established both
that Waber's putative justifications were false and that age-
related bias in fact motivated the decision to fire him. We
evaluate Waldron's responses to Waber's explanation below. As we
do, we recall that since this case is before us for review of a
grant of summary judgment, we address the case as if we were the
district court, exercising plenary review of both facts and law.
Additionally, we must view the evidence in the light most
favorable to the nonmovant, giving that party the benefit of all
reasonable inferences derived from the evidence. Torre v. Casio,
42 F.3d 825, 830 (3d Cir. 1994).6
6
. Waber argued to the district court that it should apply the
Fourth Circuit's reasoning in Proud v. Stone, 945 F.2d 796 (4th
Cir. 1991), that because Waldron was 61 years old when hired by
Waber and 63 1/2 years old when promoted prior to termination, a
strong inference existed that discrimination was not a
determining factor for the adverse action taken by the employer.
Although the district court did not rely on Proud, it did "accept
the logic that underlies the Proud inference." Waldron, 849
F. Supp. at 1006 n.14.
1.
Addressing first the company's reorganization plan,
Waldron contends that the evidence at summary judgment would
permit a jury to reasonably conclude that the reorganization was
simply a way of getting rid of him in favor of a younger
employee, Ed Brown (age 32). Waldron does not dispute that the
company was experiencing economic difficulties during the period
leading up to his dismissal. However, Waldron argues that the
evidence of Waber's post-termination conduct belies the company's
contention that a valid reorganization precipitated Waldron's
termination.
Waldron begins by explaining that the evidence, viewed
in his favor, shows that Waber split the industrial market
manager position into two segments and named Brown to the post of
electronics marketing manager, but it left the other position
open and within one-half year of Waldron's termination, Waber
recombined the two market segments under one title -- industrial
market manager -- with Ed Brown in that position. Waber responds
(..continued)
However, we agree with the position advanced by the Equal
Employment Opportunity Commission as amicus curiae: "where, as
in Proud, the hirer and firer are the same and the discharge
occurred soon after the plaintiff was hired, the defendant may of
course argue to the factfinder that it should not find
discrimination. But this is simply evidence like any other and
should not be accorded any presumptive value." EEOC Br. 22.
Additionally, as the EEOC further notes, it was plausible under
the evidence presented at summary judgment that Waber would hire
Waldron, use his skills for a few years while a younger person
was being "groomed" for his position, then fire Waldron because
of his age. Id. at 22-23. Thus, even if we were inclined to
apply Proud in some circumstances, this case would be an
inappropriate candidate for the presumption.
that Waldron's "facts and surmises" simply show that the company
ultimately decided to adopt a "different organizational structure
which was less expensive than the one it planned to implement at
the time it decided to let him go -- and, as a result of this
further restructuring, Mr. Waldron's former title was ultimately
given to Ed Brown -- a younger employee (albeit one with many
more years of continuous service with Waber)." Appellees' Br.
27-28. But Waber does not provide any evidence in support of its
contention that subsequent to Waldron's discharge the company
adopted a new plan of reorganization. More significantly,
however, Waber's response ignores the inference created by
evidence demonstrating that Waber split Waldron's job, fired him,
offered one-half of his former job to a younger person while the
other half remained unadvertised, and then recombined the jobs
and placed the younger employee in the recombined post. Although
Waber may be able to explain this behavior at trial, a reasonable
jury certainly could conclude that these actions cast sufficient
doubt on the company's contention that Waldron was discharged as
part of a plan of reorganization.7
Waldron also notes with respect to the reorganization
that Waber's business plan for fiscal year 1992, which was worked
7
. Waber conceded at oral argument that there was "no dispute"
that Waber "vacillated" in the course of eighteen months,
asserting that it went back and forth five times in splitting and
recombining the Industrial Market Manager position during the
period leading up to and immediately following Waldron's
termination. The company also explained that Waldron himself was
the beneficiary of many of the vacillations. That would not
excuse, however, the use of a putative reorganization as a ruse
to shunt Waldron out the door.
on by both Woznicki and Mazik and presented to Waber's parent
company just one month prior to Waldron's termination, did not
show the industrial market manager position being split up into
segments. App. 233-34 (Mazik deposition). Waber responds that
the fact that the recently adopted business plan had Waldron's
name in the industrial market manager spot is consistent with its
explanation that it decided not to keep Waldron on in the
reorganization. This shows, the company contends, that the
decision to fire him did not come until his poor performance in
preparing and rehearsing the fiscal 1992 business plan in July.
Yet Waldron's evidence suggests that the company did not intend
to have two positions -- or at least not for long. The
permissible inference is that the reorganization was not planned,
but rather pretextual.
Additionally, Waldron contends that there is evidence
upon which the jury could conclude that the reorganization that
cost Waldron his job demonstrated age-related prejudice by Waber.
Waldron notes that when his predecessor at the industrial market
manager position, Scott Hammill (twelve years his junior), had
difficulties, Waber had found him help by splitting his position
and giving him one half of the industrial market. By contrast,
Waldron notes, when Waber determined to split up Waldron's job
(the same post Hammill had held), Waldron was not offered either
segment of the industrial market, but instead was terminated.
Surprisingly, Waber did not respond to this last
argument in its briefing. Perhaps by way of partial response,
however, Waber asserts the uncontroversial proposition that
"barring an attempt to conceal discrimination," a company "`has
the right to make business judgments on employee status,
particularly when the decision involves subjective factors . . .
that the [c]ompany deems essential' to the position" in question.
Appellees' Br. 28, quoting Healy v. New York Life Insurance Co.,
860 F.2d 1209, 1220 (3d Cir. 1988). That argument begs the
question, however, of whether the reorganization was an attempt
to conceal discrimination.
Viewing all of the evidence in the light most favorable
to Waldron and weighing the parties' arguments, we agree with
Waldron that the evidence presented at summary judgment would
permit a reasonable jury to conclude that Waber's reorganization
was not the reason for Waldron's termination, but rather a
pretext. The vacillations at Waber over whether to have a single
industrial market manager or separate electrical and electronics
managers may have been innocent, but under the evidence presented
at summary judgment, a jury could reasonably question whether the
"reorganization" that ostensibly precipitated Waldron's
termination was in fact just a way of removing Waldron replacing
him in the industrial market manager position with the younger Ed
Brown. Additionally, Waldron's evidence concerning the business
plan is not without force: a jury could reasonably conclude that
Waber's failure to account for a split in the industrial market
manager position in its carefully orchestrated business plan
demonstrates that the reorganization came about because of
Waber's desire to terminate Waldron's employment, rather than as
a factor innocently leading to that result. Thus, there is
sufficient evidence upon which a jury could reasonably determine
that Waber's justification for terminating Waldron because of a
reorganization was implausible and inconsistent.
2.
We turn, therefore, to Waber's contention that its
dissatisfaction with the way in which Waldron pursued key
accounts during his tenure as industrial market manager was part
of the reason why the company terminated Waldron in the
reorganization. According to Waber, it grew frustrated by
Waldron's alleged unwillingness or inability to pursue key
accounts through face-to-face meetings at the headquarters of
such customers and potential customers. Waldron, however,
contends that he submitted substantial evidence at summary
judgment upon which a jury could reasonably determine that
Waber's justification was either a post hoc fabrication or actual
evidence of discrimination. Again, we agree.
Initially, Waldron disputes whether in fact he failed
to visit key accounts. The district court quoted from and relied
upon the testimony of Mazik, in which he stated that Waldron
"`couldn't or wouldn't visit major accounts in the electrical
distribution market . . . .'" Waldron, 849 F. Supp. at 1002
(quoting Mazik Dep.). Waldron testified, however, that he
visited key accounts, and also testified that his requests for
authorization to travel were sometimes rejected by Woznicki.
App. 62-64, 66, 162 (visited accounts), 127, 153-57 (Woznicki
rejected travel requests).
The district court did not address any of this
testimony at summary judgment -- to the contrary, it stated that
Waldron had "concede[d] that he disregarded the company policy of
calling on key accounts . . . ." Waldron, 849 F. Supp. at 1005.
As support, the district court cited a portion of Waldron's
deposition that, in our view, simply does not support the theory
that Waldron "conceded" anything. See id. (citing Waldron Dep.
at 439); cf. App. at 158-59 (showing context of material quoted
by district court), 162 (Waldron testifies that in year preceding
termination he made between 12 and 14 key account visits to
company headquarters in electrical market and between 4 and 5 in
electronics market).
Nevertheless, this evidence is not ultimately probative
of pretext. Waber submitted testimony suggesting that the
company was dissatisfied with Waldron's efforts at contacting key
accounts in face-to-face meetings at their business locations.
E.g., App. 207, 211, 239. Thus, the fact that Waldron indeed
made key account visits is not probative of whether Waber
believed that he should be doing more in that effort. See Billet
v. CIGNA Corp., 940 F.2d 812, 825 (3d Cir. 1991) (plaintiff's
"view of his performance is not at issue; what matters is the
perception of the decision maker"). Of course, to the extent
that Waldron's testimony tended to show that his supervisor
hampered his efforts to make more key account visits, that
evidence could lead to an inference that Waber intentionally set
goals that Waldron could not meet. Yet Waldron's deposition
testimony on this point was equivocal. When pressed by opposing
counsel, Waldron stated that he had "no idea" where he had wanted
to go on the three or four occasions on which he sought but was
refused authorization to travel. App. 154. Thus, crediting
Waldron's evidence that he was denied such authorization, that
still does not prove that the contemplated travel was for face-
to-face meetings with key accounts, as the company wanted.
Waldron's second thrust at the key account
justification, however, is more powerful. Waldron notes that
despite Waber's contention that focusing on key accounts was an
"edict of the company, especially under Ron Mazik's tenure, and
even prior to that" (App. 208 (Woznicki Dep.)), or alternatively
the "major focus, and that wasn't just for Reed Waldron" (App.
212), Waber replaced Waldron with Ed Brown, an employee who had
performed only as a "back-up" to sales representatives and who
did not have any significant experience making calls to key
accounts. App. 191, 242-43. Additionally, according to Mazik,
Waber did not expect Brown to make key account calls after
replacing Waldron -- Mazik stated that "[w]e didn't think that Ed
Brown had the capabilities to do that." App. 243. And,
according to Mazik, in fact "nobody" performed the job of calling
on key accounts after Waldron's departure. Id.
This evidence points in one of two probative
directions. On one hand, as Waldron argues, the evidence could
lead a reasonable jury to reject Waber's explanation that the
company fired Waldron because he failed to call sufficiently on
key accounts. Given the evidence that despite Waber's ostensible
focus on key accounts, the company elevated (in an admittedly
roundabout way, see supra pp. 12-14) to industrial market manager
an employee with no sales experience (whom it considered
incapable of calling on key accounts), and that no one called
upon key accounts after Waldron was fired, a jury could
reasonably conclude that visiting key accounts was not nearly as
important to Waber as it said it was -- and that Waber's
explanation for firing Waldron was thus unworthy of credence.
Alternatively, as Waldron also argues, one could view
the evidence on key accounts as suggestive of a double standard.
For Waldron, the evidence suggests, visiting key accounts was an
element of the industrial market manager position. For Brown, it
was not.
Waber responds in two ways to Waldron's arguments.
First, it asserts that the evidence, taken as true, would only
support the inference that by the time Brown assumed the title of
industrial market manager, that position had become a job lower
on the organizational ladder with fewer responsibilities, and
visiting key accounts was no longer among them. Appellees' Br.
30. However, Waber provides no citation to the record to support
the suggestion that Brown's job was lower on the organizational
ladder, and we find both of the inferences suggested by Waldron
-- that is, pretext or double standard -- to be at least equally
as plausible as the one offered by Waber.
Second, Waber argues that Waldron's double-standard
argument runs afoul of Fowle v. C & C Coal, a Div. of ITT-
Continental Baking Co., 868 F.2d 59 (3d Cir. 1989). In Fowle,
the plaintiff alleged that he had not been hired as a company
vice president because of his age. The company responded that
Fowle did not satisfy one of the essential criteria of the job --
that is, he lacked the management skills necessary to possibly
replace the president of the company within two to four years.
Id. at 64. Fowle attempted to show that this justification was
pretextual by demonstrating that this ostensible prerequisite was
subsequently relaxed (from two to four years to five to ten
years) as soon as the company found a candidate younger than
Fowle that it wanted to hire. We rejected Fowle's argument,
finding that Fowle's evidence suggested, at most, "an evolution
of the position's specifications" over time. Id. at 66. Waber
apparently believes that, in a similar manner, Waldron's evidence
with respect to key account visits merely demonstrates that the
industrial market manager position evolved over time, but creates
no inference of pretext or discriminatory double standard.
Yet Fowle cannot be read so broadly. If, every time
one candidate for a position was rejected based on some criterion
and another was ultimately hired notwithstanding his or her
failure to satisfy the same criterion we nevertheless permitted
employers to escape liability with the explanation that the job
specifications had simply changed, we would rip a great hole in
the Congressional scheme for affording relief for the victims of
discrimination. Indeed, Fowle itself makes this fact clear in a
manner that distinguishes it from this case. We noted that, even
though the precise contours of the job requirement at issue there
may have changed over time, there was "no evidence that potential
to replace the President -- in whatever time frame -- was not a
requirement" of the successful candidate. Fowle, 868 F.2d at 66.
By contrast, in the case before us, Waldron's evidence suggests
that although visiting key accounts was a job requirement when he
held the industrial market manager position, it promptly ceased
to be one when he left. Thus Fowle does not insulate Waber in
this case.
The district court rejected Waldron's double-standard
evidence based upon a different theory. The district court found
that whereas the typical double-standard case involves objective
criteria, this case involved subjective criteria. Waldron, 849
F. Supp. at 1007. Because the employment decision in this case
involved subjective criteria, the district court reasoned, our
decision in Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983
F.2d 509 (3d Cir. 1992), prohibited the court -- or a jury --
from intruding into and second-guessing Waber's business
decision.
We disagree with this analysis on several grounds.
First, we disagree with the district court's apparent premise
that visiting key accounts was a "subjective" job criterion. The
evidence at summary judgment indicated that it was an objective
and readily assessable criterion. Furthermore, Ezold does not
stand for the proposition that it is always impermissible to
review employers' subjective decision making -- indeed, quite to
the contrary, Ezold contemplates that courts and juries must do
so.
In Ezold, a female associate had been denied
partnership at a law firm because the firm had decided that she
was deficient in legal analysis skills. She sued, alleging sex
discrimination, and the district court agreed and found the firm
liable. We reversed. We cautioned in the course of our opinion
against "interfer[ing] in an otherwise valid management decision"
without some evidence to "cast doubt" on the employer's proffered
reasons. Ezold, 983 F.2d at 527. We focused, however, upon the
district court's failure to stick to the criterion at issue in
the employer's business justification. We found that instead of
determining whether the criterion of "legal analysis skills" had
been applied in a discriminatory manner -- i.e., whether male
associates had been welcomed into the partnership notwithstanding
the firm's belief that they lacked legal analysis skills -- the
district court had impermissibly determined that the plaintiff's
other strengths outweighed any deficiencies in legal analysis.
Id. at 527-28. Thus, in disapproving the district court's
analysis, we did not conclude that it would be impermissible for
the district court to determine whether the criterion of "legal
analysis skills" -- a standard with undeniably subjective
elements -- had been applied differentially. Rather, we stated:
Where an employer produces evidence that the
plaintiff was not promoted because of its
view that the plaintiff lacked a particular
qualification the employer deemed essential
to the position sought, a district court
should focus on the qualification the
employer found lacking in determining whether
non-members of the protected class were
treated more favorably.
Ezold, 983 F.2d at 528. Therefore, Ezold does not stand for the
proposition that courts and juries are foreclosed from assessing
whether an employer created a double standard using one or more
subjective criteria, but instead stands for the opposite
principle.
Thus, it is evident that Waldron also cast substantial
doubt upon Waber's proffered justification that it decided to
terminate Waldron because of his failure to visit key accounts
with sufficient regularity. Indeed, viewed in the light most
favorable to him, Waldron's evidence suggests either that failure
to visit key accounts with regularity was not really a reason for
Waldron's termination (that is, the reason is pretextual) or that
Ed Brown was treated more favorably than Waldron, suggesting not
just pretext, but in fact discriminatory bias.
3.
As we have seen, Waber contended that economic hardship
forced a restructuring of the industrial market manager position,
and that the decision not to retain Waldron for either of the two
positions was motivated largely by the fact that Waldron had
failed to visit key accounts with sufficient regularity.
Appellees' Br. 8-9. The company contends, however, that the
decision to terminate Waldron "became inescapable during June
1991 as Waber was preparing to present its business plan" for
fiscal year 1992. Id. at 9. Waber contends that Waldron showed
his weaknesses as an employee at this point in three areas:
(a) drafting his portion of the business plan in an inadequate
manner that required substantial rewriting by his supervisors;
(b) failing to perform adequately at a dress rehearsal of the
presentation of the business plan to corporate officers of
Waber's parent; and (c) making stray comments at the actual
presentation of the business plan that suggested that Waldron was
either unaware of or disagreed with the direction in which the
company was headed.
Initially, we note that none of these factors was
presented to the district court or argued to us as an independent
justification for Waber's decision to terminate Waldron. Rather,
each was ostensibly a proverbial straw which, taken together,
broke a back weakened by Waber's need to reorganize and Waldron's
failure to serve key accounts in the manner desired by his
superiors. Having produced evidence upon which a jury could
reasonably conclude that both the reorganization and key account
justifications were pretextual (and in the latter case possibly
evidence of bias), Waldron thus has also undermined the vitality
of the other proffered justifications that we turn to now.
However, since Waldron does not rest merely upon his refutation
of Waber's principal business justifications for the termination
of his employment, but rather provides particularized responses
to these "final straw" justifications, we address his evidence
and arguments below.
(a)
At summary judgment in the district court, Waber relied
upon the deposition testimony of Woznicki to support its
contention that Waber was discouraged by Waldron's draft of his
portion of the business plan for fiscal year 1992, which required
a "massive overhaul" by Woznicki and Mazik to get it in shape to
present to Waber's parent company. See Waldron, 849 F. Supp. at
1002; see also App. 216. This dissatisfaction, Waber contended,
helped to tilt the balance against retaining Waldron.
Waldron responds that he presented evidence by way of
his own testimony that no changes were made his portion of the
business plan. App. 173. Waber criticizes Waldron's testimony
as "self-serving," but the Supreme Court has made it clear that
self-serving testimony may be utilized by a party at summary
judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 324
(1986)(noting that plaintiff may create material issue of fact by
proffering, inter alia, "her own affidavits"). Furthermore, it
is obvious that the testimony is no more self-serving than
Woznicki's was on behalf of Waber. Waldron's testimony was under
oath and subject to cross examination, just as was Woznicki's.
Since no other evidence was presented aside from the two
deponents' competing recollections, we see little reason to
credit one and reject the other. Instead, we see this as a
disputed material fact issue to be resolved at trial.
Waber also states that the issue was not whether
Waldron believed that he wrote his portion of the business plan
adequately, but rather whether Woznicki and Mazik were satisfied
with it. Yet Waldron's testimony, if believed, establishes that
Woznicki and Mazik did not rewrite the business plan, which casts
serious doubt on Waber's contention that it was dissatisfied with
Waldron's efforts.
(b)
With respect to the so-called "dress rehearsal" of
Waber's fiscal 1992 business plan, Waldron concedes that he
performed poorly -- "I . . . came off as being unprepared, which
I was." App. 175. Waldron maintained at summary judgment,
however, that evidence demonstrated that he was "tripped up" by
Mazik and "singled out" at the meeting -- which he had not been
told was a dress rehearsal -- as the only one forced to make his
presentation. App. 173-75.8 Again, Waber contends that this
evidence was "self-serving" deposition testimony, but we see no
reason for not finding that it, too, creates a disputed issue of
material fact.
(c)
Finally, Waber, using the testimony of Woznicki, argued
that Woznicki and Mazik also were dissatisfied with Waldron's
performance at the actual presentation of the fiscal 1992
business plan to Waber's parent company, SL Industries.
Specifically, Woznicki stated that, after completing his
presentation, Waldron mentioned that the way to expand Waber's
business was "through [sales] rep[resentative] commission
8
. At oral argument, Waldron made an additional argument not
present in his briefs: to the extent that the meeting at which
he was forced to make his impromptu presentation was a dress
rehearsal, a jury could reasonably infer that Waber's reaction to
Waldron's mistakes were stereotypical. That is, dress rehearsals
are meant to shake out the bugs and allow people to make
mistakes, but Waber reacted in a manner that suggested that it
believed that when an older employee makes a mistake, he cannot
learn. Waldron's counsel might be able to make this argument to
the jury, of course, but we refuse to rely upon it because it is
premised on the theory that mistakes are expected at dress
rehearsals and were tolerated when made by employees other than
Waldron at the rehearsal in question, assuming that the meeting
was in fact a dress rehearsal. Based on the record before us,
that is speculation, not evidence.
increases." App. 217 (Woznicki Dep.). This comment, Woznicki
stated, made him and Mazik look bad because that was not what the
company planned to do. Id. The comment was especially damaging
because this was Mazik's first presentation to Waber's parent
company, and he had wanted everything to go flawlessly. Id.
Waldron responded at summary judgment, however, by
pointing to his deposition testimony, in which, apparently
reading from the business plan itself, he noted that "[r]evamping
[sales representatives'] commissions to reward growth" was in the
plan. App. 177. Waldron also notes that in the same memorandum
to industrial sales representatives in which Woznicki announced
Waldron's termination, Woznicki also announced an increase in
sales representatives' commissions as a promotional effort (App.
192), suggesting that increasing commissions was not inconsistent
with Waber's growth strategy. This evidence could permit a jury
to conclude that it was implausible that Woznicki and Mazik felt
that Waldron's comments at the formal presentation concerning
increased commissions showed that he was unaware of or in
disagreement with the company's focus.
4.
Finally, we note Waldron's additional argument that he
has evidence of age-related animus or bias in the form of a
comment made to him by Mazik. Waldron testified that five months
prior to his termination, in a meeting in which Mazik promoted
Waldron to industrial market manager, Mazik told him, "I want you
to lose weight. He told me that it'll make you feel better.
It'll make you look younger." App. 129. The district court
found that "Mazik's comment that plaintiff might consider losing
weight in no way indicates that plaintiff's termination was
motivated by age." Waldron, 849 F. Supp. at 1008. Noting that
the comment was five-months prior to Waldron's termination and in
the context of a promotion, and also Waldron's concession that
Mazik did not condition continued employment upon satisfying
Mazik's desires, the court concluded that "we believe the comment
to be a stray remark entitled to little if any weight . . . ."
Id., citing Ezold, 983 F.2d at 545.
We disagree. Crediting the evidence, the comment was
made by the person who, according to Waber itself (Appellees' Br.
6), ultimately approved the decision to terminate Waldron.
Furthermore, although the comment was made five months prior to
Waldron's termination, it occurred at a time when, according to
Mazik himself, Woznicki was already arguing to him that Waldron's
employment should be terminated. App. 236.9 Thus, we believe
that the comment may be entitled to some weight when considered
by the jury, although standing on its own it would likely be
insufficient to demonstrate age-related animus. In other words,
the comment is not irrelevant, especially when coupled with
Waldron's other evidence of discrimination, which demonstrates a
double standard was applied vis-a-vis Brown as to visiting "key
9
. Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983 F.2d 509
(3d Cir. 1992), is distinguishable on both grounds mentioned in
the text: the discriminatory comment in that case was made by a
non-decisionmaker, five years prior to the decision to refuse the
plaintiff in that case admission into the law firm partnership.
Ezold, 983 F.2d at 545.
accounts." A reasonable jury could conclude that this evidence
of discrimination, coupled with Waldron's prima facie case,
proved that age discrimination was more likely than not a
determinative factor in Waber's decision to terminate Waldron's
employment.
C.
To summarize, Waldron provided sufficient evidence upon
which a reasonable jury could determine that Waber's proffered
justifications for its decision to terminate Waldron's employment
were unworthy of credence. Waldron has cast doubt upon Waber's
contention that the need for a business reorganization
precipitated Waldron's firing, and he also has produced evidence
upon which the jury could conclude that Waldron was not let go
because of dissatisfaction about his alleged failure to visit key
accounts with sufficient regularity. Indeed, a jury could
permissibly infer from Waldron's evidence concerning key accounts
that Waber applied a double standard with respect to Waldron and
the much younger Ed Brown. By undercutting these principal
justifications for terminating Waldron's employment, Waldron has
also provided reasonable grounds upon which a jury could reject
as weak and implausible Waber's three ostensible "final straws"
-- Waldron's alleged poor draftsmanship on a portion of the
business plan, his poor performance at a putative dress rehearsal
of a presentation of that plan, and the dissonance ostensibly
caused by Waldron's offhand comments after formal presentation of
the plan. Additionally, however, as we have just discussed,
Waldron has produced particularized evidence upon which a jury
could reasonably conclude that each of these ostensible last
straws is unworthy of credence.
Furthermore, this record is not without evidence which
tends to support not just pretext, but pretext for
discrimination. As we discussed at greater length above, a jury
could reasonably infer that Waldron's evidence with respect to
key accounts demonstrated that Waber imposed a double standard.
Mazik's comment that he wanted Waldron to lose weight because it
would make him look younger takes on a more suspicious cast when
coupled with evidence that Woznicki was already pushing Mazik to
fire Waldron when the comment was made. If a jury then reflected
that Waldron was not kept on when the industrial market manager
position was split in two because he failed to visit key
accounts, but that young Ed Brown was elevated ultimately to a
reconstituted industrial market manager position without having
to call upon key accounts, the jury might reasonably infer that
Brown's youth excused his inability to service the key accounts.
Thus, even if we were permitted to ignore Fuentes and its progeny
and apply a "pretext-plus" standard, we nevertheless would
conclude that Waldron satisfied that standard, as well.
Because Waldron produced sufficient evidence to survive
summary judgment on his ADEA claim, we will reverse the district
court's judgment in favor of Waber on that claim.
III.
The district court granted summary judgment not only on
Waldron's ADEA claim, however, but also on his claim under the
New Jersey Law Against Discrimination, reasoning that the LAD and
ADEA "are governed by the same standards and burden of proof
structures applicable under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq." Waldron, 849 F. Supp. at 1000,
citing Erickson v. Marsh & McLennan Co., 117 N.J. 539, 569 A.2d
793 (1990), and Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 538
A.2d 794 (1988). Thus, we must assess whether summary judgment
in the LAD claim must be reversed as well.
Since the district court's opinion in this case, we
have predicted in McKenna v. Pacific Rail Services, Inc., 32 F.3d
820 (3d Cir. 1994), that the New Jersey Supreme Court would adopt
Hicks's "clarification of the test to be applied in federal
discrimination cases in interpreting the LAD . . . ." Id. at
824. This is consistent with the district court's hypothesis
about the similarities between federal and New Jersey law
relating to age discrimination. McKenna, however, involved a
jury trial under the LAD, and we reversed because the district
court had not provided jury instructions consonant with Hicks.
It did not involve the standard for summary judgment under the
LAD, and the parties here did not brief the issue of whether the
New Jersey Supreme Court would adopt Fuentes, just as we
predicted in McKenna that it would adopt Hicks.
Largely for reasons discussed in McKenna, we believe
that the New Jersey Supreme Court would adopt our reasoning in
Fuentes as governing what evidence must be produced by a
plaintiff to survive summary judgment in an indirect evidence
case after Hicks. As we noted in McKenna, the New Jersey Supreme
Court has not only adopted the McDonnell Douglas framework for
evaluating discrimination cases based upon indirect evidence, but
has consistently looked to federal courts for guidance about the
application of the shifting-burdens analysis. McKenna, 32 F.3d
at 827. Where the New Jersey Supreme Court has departed from
federal precedent, it has often done so in order to lessen the
burdens on plaintiffs. Id. at 827-28. And indeed, consistent
with Fuentes, we stated in McKenna that a plaintiff's proof of a
prima facie case and rebuttal of an employer's justifications
"may suffice [to carry a plaintiff's ultimate burden of
persuasion] if the factfinder believes that the employer offered
false reasons to conceal unlawful discrimination. . . ." Id. at
831.10 These considerations lead us to conclude that the New
Jersey Supreme Court would adopt the more liberal "pretext-only"
standard enunciated in Fuentes for determining a plaintiff's
burden at summary judgment, rather than the more demanding
"pretext-plus" standard adopted by some of our sister circuits.
Thus, what we said about Waldron's ADEA claims also
applies here, and for the reasons provided in Section II, supra,
10
. Of course, in McKenna we predicted that the New Jersey
Supreme Court would adopt Hicks, instead of some more lenient
rule, because of the following: (1) in New Jersey, as in federal
law, plaintiffs always retain the ultimate burden of persuasion
with respect to claims of discrimination (McKenna v. Pacific Rail
Service, 32 F.3d 820, 828 (3d Cir. 1994)); (2) New Jersey and
federal rules relating to presumptions are similar (id. at
829-30); and (3) the New Jersey Supreme Court's decision in
Goodman v. London Metals Exch., Inc., 86 N.J. 19, 429 A.2d 341
(1981), was consistent with the Hicks formulation of a
plaintiff's burden at trial (McKenna, 32 F.3d at 830-31). Those
factors in no way suggest that the New Jersey Supreme Court would
refuse to adopt Fuentes.
we find that Waldron's LAD claims should have survived summary
judgment, as well.
IV.
In conclusion, we find that Waldron proffered
sufficient evidence to survive summary judgment on his ADEA
claims under Fuentes. We also predict that the New Jersey
Supreme Court would adopt Fuentes as a proper articulation of a
plaintiff's burden at summary judgment for claims under the LAD.
Thus, we will reverse the district court's judgment in its
entirety and remand this case for further proceedings consistent
with this opinion.